Tuesday, December 12, 2006
Recent calls for an advocate who will protect the consumer’s interest in the safety of drugs has taken me back to my law school days. One of my esteemed professors made it clear to us that, in America, the purpose of tort law was two fold; the compensation of the person who has been harmed by the wrongdoing of another, and the inherent beneficial social change that results from holding one accountable for their misdeeds. Plainly put, if one is held accountable for wrongdoing, will not that result in a change of behavior to prevent future harm? Given the hysterical hand wringing of interest groups (e.g. The American Medical Association, the drug industry, the insurance industry) and politicians (President Bush and his so-called tort reform ethos) who maintain that special interest groups (generally the largest campaign contributors) should not be held accountable for their conduct, the net result has been that the fundamental purpose of the Seventh Amendment of the United States Constitution has been distorted beyond recognition. Is it not a fundamental conservative value, if not a constitutional guarantee, that one should be held responsible for their acts? In the good old days, before the rubric of “tort reform” became an acceptable misnomer for “wrongdoer protection,” the lawsuit was a valued means of providing a check on behavior which was harming the public. Harmful products, such as the Dalkon Shield, Oraflex, DES and Bendectin, were removed from the marketplace as a result of law suits. Other products, such as oral contraceptives and non-steroidal anti-inflammatories which were forced to modify dosages or accompanying information resulted in untold numbers of prevented deaths and injuries, all as a direct result of lawsuits. In light of the example of Vioxx which clearly demonstrates the lack of competency of the FDA in protecting the public, the clearest example of wrongdoer protection ( tort reform) lunacy is found in the State of Michigan in it's legislative and supreme court determination that if the FDA has approved a drug, by definition the drug is safe. Since the mid-1990s all tort activity against the drug industry in that state has been halted. There are 27,000 deaths each year of Michigan citizens killed by prescription drugs. Aside from the fact of the costs of this massive toll in dollars and misery, what incentive exists in the Michigan example for change of a business as usual approach to drug corporate behavior? Beware the rest of America. The Michigan example is perilously close to being brought to you by your nationally elected officials.